Filed 10/18/17; Certified for Publication 10/23/17 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PAUL KENDALL,

Plaintiff and Appellant,

v.

SCRIPPS HEALTH,

Defendant and Respondent.

 D070390

 (Super. Ct. No. 37-2013-00073680-

 CU-BT-CTL)

APPEAL from an order of the Superior Court of San Diego County, Richard E. L. 

Strauss, Judge. Affirmed.

Carpenter Law, Gretchen A. Carpenter; Law Office of Barry Kramer and Barry L. 

Kramer for Plaintiff and Appellant.

Hooper, Lundy & Bookman, Jennifer A. Hansen and Sansan Lin for Defendant 

and Respondent.

Plaintiff and appellant Paul Kendall's second amended complaint asserts several 

types of class-wide claims that challenge the billing and collection practices of the health 

facility operating an emergency room where he received care, defendant and respondent 
Scripps Health (Scripps). As relevant here, Kendall seeks declaratory relief on contract 

interpretation theories, and remedies under the Consumers Legal Remedies Act (CLRA; 

Civ. Code, § 1750 et seq.) and the unfair competition law (UCL; Bus. & Prof. Code, 

§ 17200 et seq.; both are sometimes designated the statutory claims). Under the latter 

theories, Kendall seeks injunctive relief and damages or restitution of amounts charged to 

emergency care patients, such as himself, who do not have insurance or similar 

governmental benefits such as Medicare or Medi-Cal. Kendall contends that such "selfpay" patients, who signed a form during the reception process at the emergency room (an 

"Agreement for Services at a Scripps Facility," hereafter Agreement for Services), are 

being unfairly billed under that contractual agreement at prescribed rates that are listed on 

a publicly available "charge description master" (Charge Master). Such Charge Master 

rates are alleged to be higher than the reimbursement amounts that such hospitals 

customarily receive from the insurers for patients who have policy coverage, or from 

medical governmental benefits providers. Kendall objects that self-pay patients such as 

himself are harmed when they receive medical bills reflecting Charge Master rates.1

This appeal arises from the trial court's order denying Kendall's motion to certify a 

proposed class of self-pay patients for the pursuit of two overriding legal theories that 

1 As a licensed hospital, Scripps is required to comply with the provisions of Health 

and Safety Code section 127400 et seq., the Hospital Fair Pricing Policies Act, on 

notifications to patients of available discounts and charity care options. (Health & Saf. 

Code, §§ 127401, 127410; all further statutory references are to the Health & Saf. Code 

unless noted.) This Act's provisions are to be construed as allowing hospitals to 

communicate their otherwise established uniform Charge Master or published rates, when 

such notifications are implemented. (§ 127444.)

2

 
apply to both the declaratory relief and statutory claims. (Code Civ. Proc., §§ 382, 1060, 

1061; Civ. Code, § 1781.) These two theories request class-wide contractual 

interpretation of the payment terms of the Agreement for Services, to limit Scripps to 

billing or charging such patients no more than the reasonable value of the services 

rendered, and/or to establish that the listed Charge Master rates are unconscionable as a 

matter of law. In support, Kendall provided declarations from expert witnesses giving 

their opinions about usage of typical hospital billing systems and the feasibility of 

identifying potential self-pay class members.2

Scripps opposed the motion, arguing a class action was not shown to be an 

appropriate method to pursue the case because of a lack of predominant common issues 

and of any convincing showing of an ability to ascertain the identity of all the proposed 

class members. Scripps provided declarations from expert witnesses and its financial 

services manager that described the variability and complexity of its billing arrangements 

for individualized patient care, in light of applicable government regulations on 

availability of and reimbursement for emergency hospital care. (E.g., § 1317, subd. (d) 

[restricting emergency care providers from requiring payment arrangements from a 

patient until the emergency condition is stabilized, but requiring the patient to agree in 

writing to supply financial information to the providers after services are rendered].)

The trial court denied the motion for class certification, concluding that Kendall 

had not presented any substantial evidence showing there were predominant common 

2 As to Kendall's individual theories of intentional and negligent concealment that 

challenge the same Scripps billing activity, no class treatment is sought.

3

 
issues of law and fact among the putative class members. The court next addressed the 

concerns Scripps raised about the difficulty of ascertaining class membership for 

individual patients' payment records, in terms of recent authority from this court, Hale v. 

Sharp HealthCare (2014) 232 Cal.App.4th 50 (Hale II). The trial court concluded 

Kendall had not shown there were objectively feasible ways of identifying members of 

the proposed class. The court ruled that the proposed declaratory relief on contract 

interpretation issues was unsuitable for class-wide treatment, because no actual 

controversy about the terms of the Agreement for Services was presented, and any such 

relief would be cumulative to the underlying determinations requested on the statutory 

claims. (Code Civ. Proc., § 1061.)

On appeal, Kendall contends the trial court's order denying class certification of 

his statutory claims reflects the use of improper criteria and an incorrect legal analysis. 

(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022 (Brinker).) 

To the extent the court found there were no predominantly common questions existing 

and that no reasonably ascertainable class had been defined, Kendall argues there was no 

substantial evidence to support the order. (Nicodemus v. St. Francis Memorial Hospital

(2016) 3 Cal.App.5th 1200, 1211 (Nicodemus).) He further claims the trial court erred in 

applying California analytical standards to evaluate the propriety of permitting his 

declaratory relief claim to proceed as a class action, because he believes federal standards 

developed for dealing with illegal system-wide practices or policies would be preferable. 

(Fed. Rules of Civ. Proc., rule 23(b) (FRCP); see, e.g., Briseno v. ConAgra Foods, Inc.

4
(9th Cir. 2017) 844 F.3d 1121, 1124-1125 [wide variations exist in judicial 

interpretations of "ascertainability"].)

We conclude the trial court correctly determined that class treatment is not 

appropriate for any of the identified causes of action. The court analyzed the proposed 

class definition in terms of well-established class action criteria that require commonality 

of interests and ascertainability. The court's ruling did not exceed the scope of a proper 

class determination or impermissibly resolve the merits of the ultimate issues presented. 

(Hall v. Rite Aid Corporation (2014) 226 Cal.App.4th 278, 292 (Hall) [" 'for purposes of 

certification, the proper inquiry is "whether the theory of recovery advanced by the 

plaintiff is likely to prove amenable to class treatment." ' "].) Finding no abuse of 

discretion or lack of substantial evidence, we affirm the order denying class certification.

FACTUAL AND PROCEDURAL BACKGROUND

A. Emergency Treatment Provided; Action Filed

Scripps is a nonprofit, integrated health system owning and operating several local 

hospitals that have emergency rooms. On July 9, 2013, Kendall received emergency 

treatment at one of these health facilities. At reception, he signed Scripps's Agreement 

for Services containing numerous provisions, particularly the following "Financial 

Arrangements" paragraph:

"If signing as the patient or legal representative, I agree, in 

consideration for services received, to pay the Facility's billed 

charges as contained in the Facility's Charge Description Master

and, if the account is referred to a collection agency or attorney, 

reasonable attorneys' fees and collection expenses. I authorize the 

Facility, a collection agency or other entity contracting with the 

Facility, to obtain my credit report from consumer reporting 

5
agencies for use in obtaining payment for services or determining 

eligibility under the Facility's financial assistance programs. Call 1-

800-690-9070 for more information regarding financial assistance." 

(Italics added.)3

Kendall paid a $100 deposit and received treatment, then left the hospital. He was 

not covered by any commercial medical insurance plan or governmental health program 

for his treatment, and no payments have been made for his visit by outside sources.4 

Over the next few months, Scripps billed him at Charge Master rates for the services 

provided in the amount of $17,511, less his deposit. The bills showed coverage 

determinations were pending and he was otherwise a self-pay patient. The bills sent in 

October and November 2013 notified him the matter would be sent to collections if no 

payments were made.

After Kendall filed this action in October 2013, Scripps brought demurrers that 

were sustained in part. Kendall's operative pleading is the second amended complaint 

(the complaint), which asserts his statutory claims as potential class action causes of 

action (CLRA and UCL) and pleads declaratory relief theories. He begins with general 

allegations that within the hospital industry, hospitals maintain spreadsheets called 

3 For purposes of this action, Kendall defines patients as including signers of the 

Agreement for Services, or alternatively, a patient's legal guardian who signed and was 

billed on the patient's behalf.

4 "A hospital with an emergency department must provide a patient with 'an 

appropriate medical screening examination' and 'such treatment as may be required to 

stabilize' any emergency medical condition without regard to the patient's insurance or 

ability to pay. [Citations.] Further, a hospital generally may not transfer or discharge a 

patient until it has been determined that the emergency medical condition has been 

stabilized." (Children's Hospital Central California v. Blue Cross of California (2014) 

226 Cal.App.4th 1260, 1266 (Children's Hospital).)

6

 
"Charge Masters," which contain code numbers, descriptions, and gross billing charges 

for each product and service offered to patients. He contends "these gross billing charges 

are neither regular payment rates, nor usual and customary payment rates, nor reasonable 

payment rates. [Scripps's] Charge Masters do not constitute a pricing schedule which any 

category of hospital patient is expected to pay." He contends the Charge Master rates are 

not published on the Scripps website, but are made available for review at its offices by 

appointment during normal business hours. He alleges those Charge Master rates "are 

several times its internal costs for providing treatment/services. Indeed, according to the 

most recent annual statistics filed with the California Office of Statewide Health Planning 

and Development, the Cost-to-Charge ratios (i.e., the overall cost of providing 

treatment/services compared to the overall [Charge Master] rates for such 

treatment/services) for [Scripps's] Hospitals ranged from approximately 0.192 to 0.253, 

which indicates that [Scripps's Charge Master] rates were approximately four to five 

times its actual costs of providing services."5

Kendall seeks injunctive relief from such allegedly illegal billing behavior, as well 

as damages and restitution, based on CLRA and UCL provisions. As suggested 

declaratory relief, he requests that the trial court apply a flat percentage reduction from 

5 The Office of Statewide Health Planning and Development (OSHPD) is a 

California state agency which administers health policy and planning efforts. (§§ 127000 

et seq., 127125 et seq.) Among other things, OSHPD requires hospitals to post in 

emergency rooms information about how its charge description master is made available 

to patients on hospital websites or at their locations. (§ 1339.51, subds. (a)(1), (c).) 

Hospitals are required yearly to submit their charges to the OSHPD, pursuant to section 

1339.55, subdivision (a). OSHPD publishes selected hospital charge data publicly on its 

website. (§§ 1339.55, subd. (b), 1339.56, 1339.58.)

7

 
the gross billed Charge Master charges, as a means of arriving at the reasonable value of 

the services rendered. This reduction would be grounded in a comparison of Charge 

Master rates and the hospital's costs in providing services, and of the reimbursement rates 

for various categories of patients covered by other benefits plans.

The parties engaged in discovery. In interrogatory responses, Scripps estimated 

that for the type of treatment Kendall received, Medicare would have paid $1,842.69, 

while Medi-Cal would have paid $2,101.32, according to their government rate 

schedules. The court did not require Scripps to estimate what reimbursements could have 

been received under sample insurance arrangements, as Kendall had requested.

Notably, Kendall took the deposition of the "Person Most Knowledgeable" about 

Scripps's billing activity, Daniel Kehl, its director of patient financial services.

B. Motion for Class Certification and Opposition

In his motion for certification, Kendall proposed the following definition of the 

class:

"All individuals (or their guardians or representatives) who, from 

November 1, 2009 to the date of class certification: (a) received 

emergency screening, stabilization, and treatment/services at one of 

Defendant's emergency care facilities in California; (b) did not have 

payments for such care made by an insurer or government health 

care program; and (c) were billed at the Hospital's full [Charge 

Master] rates (the 'Class'). [¶] Excluded from the Class are those 

patients who paid nothing on their account, whose balances have 

been permanently written off in full, and who are not subject to any 

current or future collection activity or negative credit reporting. [¶] 

8
Also excluded from the Class are [officers of Defendants and 

judicial officers assigned to this matter, etc.]."6

Kendall contended the motion was authorized by California law, including CLRA 

provisions and "the equivalents of Rule 23(b)(1) and/or (b)(2) of the Federal Rules of 

Civil Procedure." He requested another hearing for the court to decide on discretionary 

notice to class members. He argued the predominance requirement was met for 

determining whether all class members should be required under the contract and 

applicable law to pay Charge Master rates, as opposed to the reasonable value of the 

services provided, as he was contending.

As support for the certification request, Kendall supplied a declaration from a 

consultant specializing in health care financing and operations, Nathan S. Basseen, who 

has expertise in analyzing the reasonable value of health care services. Basseen reviewed 

Scripps's filings with the OSHPD, as well as information provided by the Centers for 

Medicare and Medicaid Services (CMS), a federal agency which supplies providerspecific data for public use. Basseen reviewed deposition testimony from Kehl, Scripps's 

director of patient financial services. Among other opinions, Basseen drew preliminary 

conclusions that the Charge Master rates exceeded the costs of providing emergency care 

6 In the Hale II case and its predecessor, the language of the hospital's admissions 

contract referred to payment at "regular rates." (Hale v. Sharp Healthcare (2010) 183

Cal.App.4th 1373, 1378 (Hale I); Hale II, supra, 232 Cal.App.4th at pp. 53-55.) Hale 

had contended the Charge Master rates billed to uninsured patients were unreasonable 

and unconscionable, because insured patients were effectively charged less, at insurance 

or Medicare rates. (Id. at p. 54.) By comparison, Kendall attacks the Agreement for 

Services and its reference to paying the hospital's "billed charges as contained in the 

Facility's Charge Description Master and, if the account is referred to a collection agency 

or attorney, reasonable attorneys' fees and collection expenses."

9

 
services, and also exceeded reimbursement levels from governmental benefits or 

commercial payers. He believed additional discovery was needed.

Kendall also supplied a declaration from Gerald O'Connell, an expert consultant in 

health care data management, who evaluated the resources needed to extract and process 

paid claims data available to Scripps for its emergency room services provided. He 

described his review of deposition testimony from Scripps's director of patient financial 

services, Kehl, about its Eclipsys patient accounting software system. O'Connell 

described common protocols in such accounting systems, concluding that about 10-12 

hours of work would be required for a Scripps manager to produce and format the 

requested data, by utilizing the "report writer" function that Kehl had mentioned at his 

deposition.

Scripps opposed the motion and filed objections to Kendall's expert declarations, 

for lack of foundation and other grounds. Scripps argued the proposed class was not 

reasonably ascertainable, and Kendall had not shown the requisite common issues of law 

and fact. Scripps submitted a declaration from Kehl, explaining his views on how 

Kendall's expert witnesses had misinterpreted his deposition testimony about the 

capabilities of the Eclipsys accounting software, which he said was not able to capture all 

the individual claims detail that was maintained in Scripps's other main recordkeeping 

system, "File CD," which deals with imaging hard copy documents. Contrary to what 

Kendall was claiming, Scripps could not run queries on a single system to identify class 

members and establish their entitlement to recovery. The "report writer" function Kehl 

had described at his deposition required exact information about the field of inquiry and 

10
the electronic pathway needed to get to such fields, and he had testified such detailed data 

were not always attainable. Extensive manual review of other systems (e.g., File CD) 

would be necessary to get the desired information with respect to over one million 

emergency department encounters during the time periods at issue (not including trauma 

patients).

Kehl's declaration also stated that Scripps reports financial information to OSHPD, 

including revenue it receives from various payer groups, but those reports do not show 

the variations in the amounts billed to patients or received in any particular payer class. 

Kehl said that instead, "the amount Scripps is paid is influenced by a variety of internal 

and external factors, including but not limited to the contractual health plan rates [from 

insurers], fixed governmental rates, individually negotiated package pricing, prompt 

payment discounts, and the ability of patients to pay their bills, etc. [¶] The revenue 

received for any particular payer class could also be influenced by whether a procedure 

was performed on an inpatient or outpatient basis, physicians' orders, comorbidities and 

complications, medical necessity and specialty services and procedures."

Scripps submitted additional declarations from Tzvi Hefter, an expert health 

policy consultant, and Michael Heil, a management consultant in the health care field, 

describing different cost centers within the hospital system, and explaining the levels to 

which hospital costs during the provision of care sometimes exceed the reimbursement 

amounts received from government or insurance benefit systems.

In reply, Kendall contended he had set forth an adequate methodology to calculate 

the estimated reasonable value of emergency services received, on an aggregate basis 

11
based on data Scripps could provide about its payments received from patients' benefits 

or insurance providers. He proposed unspecified amendments to the class definition. On 

appeal, Kendall clarifies that the class membership could now include only those self-pay 

patients who were directly billed by the hospital at Charge Master rates, for emergency 

services they received during the defined period of time.

C. Ruling

After a reported hearing, the trial court denied the motion to certify the class. The 

court first addressed the issue of whether the proposed class was ascertainable, observing 

that the requirement of numerosity of the class had been satisfied, because during the 

approximate class period, there were over 875,000 emergency room patients treated, of 

whom about 121,000 were self-pay patients. Even though Scripps possesses all the 

pertinent billing and reimbursement information, the court said Kendall had not

established that this information was electronically managed in a manner by which there 

were reasonably objective and feasible ways of identifying class members. Although 

Kendall presented evidence that the Scripps computer programs had "report writer" 

functions available for certain parameters, Scripps had rebutted that showing with 

evidence that the information necessary to identify potential class members was not 

contained within a single information system. Both the Eclipsys accounting software and 

the imaging system that dealt with hard copies of agreements and medical records would 

have to be utilized to obtain such information, in a lengthy process. The court relied on 

evidence from Scripps's official Kehl to conclude that "individual records would need to 

be reviewed for hundreds of thousands of patients to determine the status of them as 

12
putative class members. Further, the Eclipsys records and image records would have to 

be cross-referenced to determine which patient signed the Agreement at issue in this case 

[and] a review of insurance coverages would also need to be made on an individualized 

basis."

Scripps's objections to portions of the Basseen declaration were sustained for lack 

of foundation (addressing his characterization of emergency room charges as not 

representing objectively reasonable fair market valuations of services, and his description 

of how to obtain the requested paid claims data). The court also sustained objections to 

portions of the expert declaration submitted by O'Connell, concerning his conclusions 

about how to utilize Scripps's systems for managing patient data and records, for 

purposes of ascertaining class membership. The court found no foundation was shown 

for O'Connell's "inadmissible and unpersuasive" conclusions that the data requested 

about visits and payments could be obtained in about 10 hours.7 The court relied on the 

analysis in Hale II, supra, 232 Cal.App.4th 50, on similar facts, finding that where 

overriding individualized analyses were required to determine class membership, the 

ascertainability requirement for a class of patients based on payment records was not 

satisfied. There, as here, any benefits to be gained from utilizing the class action process 

would be de minimis. (Id. at p. 61.)

7 Kendall does not make any effective attempt to show any of the evidentiary 

rulings were erroneous or an abuse of discretion. We accept them as operative for 

purposes of evaluating the arguments on appeal.

13

 
The trial court went on to analyze whether Kendall had demonstrated there was a 

well-defined community of interest in the questions of law and fact involving the 

potential class members. The court found he could not establish that common issues 

would predominate over individualized issues. The court determined that "even if [] selfpay emergency room patients received a bill for full [Charge Master] rates, there is no 

evidence all self-pay emergency room patients were required to pay or that Scripps 

exclusively sought full reimbursement of full [Charge Master] rates."8

In addressing Kendall's declaratory judgment causes of action, the trial court ruled 

that no actual controversy had been demonstrated about the terms of the Agreement for 

Services. The court commented that simply because Kendall "does not believe he should 

be required to pay [Charge Master] rates pursuant to the agreement does not create a 

controversy . . . between each putative class member and Defendant since that [would] 

require[] individualized inquiry as to how much each of those putative class members 

was required to pay and what a reasonable amount would be." The court relied on 

Allstate Ins. Co. v. Fisher (1973) 31 Cal.App.3d 391, 395 in concluding declaratory relief 

in this case would provide findings that were only cumulative to the underlying 

determinations requested under the CLRA and UCL. Kendall appeals the order.

8 Because of its conclusions on the lack of predominance of common questions, the 

trial court was not required to decide two other factors on community of interest, the 

typicality of the class representative and the adequacy of his representation. (Thompson 

v. Automobile Club of Southern California (2013) 217 Cal.App.4th 719, 727

(Thompson).) No issues on appeal exist on those factors.

14

 
DISCUSSION

I

STANDARDS RELATING TO CLASS CERTIFICATION DECISIONS

" 'Because trial courts are ideally situated to evaluate the efficiencies and 

practicalities of permitting group action, they are afforded great discretion in granting or 

denying certification.' " (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 

319, 326 (Sav-On Drug Stores); Hale II, supra, 232 Cal.App.4th at p. 57.) Since group 

litigation has the potential to create injustice, trial courts are required to " ' "carefully 

weigh respective benefits and burdens and to allow maintenance of the class action only 

where substantial benefits accrue both to litigants and the courts." ' " (Linder v. Thrifty 

Oil Co. (2000) 23 Cal.4th 429, 435.)

" 'On review of a class certification order, an appellate court's inquiry is narrowly 

circumscribed. "The decision to certify a class rests squarely within the discretion of the 

trial court, and we afford that decision great deference on appeal, reversing only for a 

manifest abuse of discretion . . . ." ' " (Hall, supra, 226 Cal.App.4th at p. 291; Brinker, 

supra, 53 Cal.4th at p. 1022.) " 'A certification order generally will not be disturbed 

unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) 

it rests on erroneous legal assumptions. [Citations.]' [Citations.] Predominance is a 

factual question; accordingly, the trial court's finding that common issues predominate 

generally is reviewed for substantial evidence. [Citation.] We must '[p]resum[e] in favor 

of the certification order . . . the existence of every fact the trial court could reasonably 

deduce from the record . . . .' " (Ibid.)

15
Class certification rulings are procedural in nature and do not decide if an action is 

"legally or factually meritorious." (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 

439-440.) Although the trial court must "examine the plaintiff's theory of recovery, 

assess the nature of the legal and factual disputes likely to be presented, and decide 

whether individual or common issues predominate" (Brinker, supra, 53 Cal.4th 1004, 

1025), it does not resolve disputed threshold legal or factual questions, unless necessary 

for resolution of the class definition questions. (Ibid.; Hall, supra, 226 Cal.App.4th at 

pp. 286-288.) "It is far better from a fairness perspective to determine class certification 

independent of threshold questions disposing of the merits, and thus permit defendants 

who prevail on those merits, equally with those who lose on the merits, to obtain the 

preclusive benefits of such victories against an entire class and not just a named 

plaintiff." (Brinker, supra, at p. 1034.)

Where necessary, the trial court has some flexibility to allow amendments to class 

definitions that will allow an appropriate class action to be resolved on its merits. (Hicks 

v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 925-926.) "We review the 

trial court's actual reasons for granting or denying certification; if they are erroneous, we 

must reverse, whether or not other reasons not relied upon might have supported the 

ruling." (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 530 (Ayala).) 

However, "[a]ny valid, pertinent reason will be sufficient to uphold the trial court's 

order." (Thompson, supra, 217 Cal.App.4th at p. 726.)

16
II

PREDOMINANT COMMON ISSUES REQUIREMENT: CLRA AND UCL

A. Introduction

Kendall seeks relief under CLRA statutory principles prohibiting unconscionable 

contract terms. (Civ. Code, § 1770, subd. (a)(19).) He also cites to Civil Code section 

1770, subdivision (a)(5), (13) and (14), prohibiting the furnishing of goods or services 

through misrepresentations, misleading statements of fact, or imposition of illegal 

obligations. The CLRA relief sought includes compensatory and punitive damages, along 

with injunctive relief, as well as attorney fees. These CLRA allegations serve as the 

predicate or "borrowed" other law being violated, under the UCL. (Hale I, supra, 

183 Cal.App.4th at pp. 1382-1383; Cel-Tech Communications, Inc. v. Los Angeles 

Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) The UCL relief sought includes 

restitution and disgorgement of funds, along with an injunction and attorney fees.

In addition to the class action requirements set forth in Code of Civil Procedure 

section 382, the CLRA also requires consideration of whether it is impracticable to bring 

all members of the class before the court. (Civ. Code, § 1781, subd. (b); Thompson,

supra, 217 Cal.App.4th at pp. 727-728.) " ' " 'As a general rule if the defendant's liability 

can be determined by facts common to all members of the class, a class will be certified 

even if the members must individually prove their damages.' " ' " (Hall, supra, 226 

Cal.App.4th at p. 287; Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 

1129, 1141-1142.) 

17
On the community of interest criterion, we consider " 'whether . . . the issues 

which may be jointly tried, when compared with those requiring separate adjudication, 

are so numerous or substantial that the maintenance of a class action would be 

advantageous to the judicial process and to the litigants.' " (Sav-On Drug Stores, supra, 

34 Cal.4th at p. 326.) This process examines the plaintiff's theory of recovery and 

assesses what kind of legal and factual disputes about the legality of the defendant's 

conduct will likely be presented. (Hall, supra, 226 Cal.App.4th at p. 289.)

B. Actual Injury or Damage

" ' "Relief under the CLRA is specifically limited to those who suffer damage, 

making causation a necessary element of proof." [Citation.] Accordingly, "plaintiffs in a 

CLRA action [must] show not only that a defendant's conduct was deceptive but that the 

deception caused them harm." ' " (Hale I, supra, 183 Cal.App.4th 1373, 1386.) We 

assume here, as there, that a patient's receipt of a hospital bill that reflects the existence of 

an enforceable agreement and an obligation may constitute actual injury. (Id. at 

pp. 1383-1384.)

For purposes of alleging there should be class-wide liability for conduct in 

violation of the CLRA and UCL, Kendall's complaint characterized Scripps's pricing, 

billing and collection practices for self-pay patients, at Charge Master rates, as unfair, 

unreasonable and unconscionable. (See Meyer v. Sprint Spectrum, L.P. (2009) 45 Cal.4th 

634, 641 ["to bring a CLRA action, not only must a consumer be exposed to an unlawful 

practice, but some kind of damage must result].") At argument before the trial court, 

Kendall's attorney acknowledged that the common questions on obligations to pay under 

18
the Agreement for Services included not only the requirements of the Agreement, but 

also applicable law.

Kendall now complains that the trial court relied on impermissible criteria when 

determining that no community of interest among class members had been shown. The 

court said he had failed to establish that all class members were damaged "simply by 

receiving a bill with the [Charge Master] rates, rather than receiving a bill with the 

alleged reasonable value of services provided." In this respect, the court was not making 

a finding that Kendall or class members would lack standing to bring a statutory claim, 

and was instead appropriately analyzing whether class treatment was appropriate. This 

required the court to make decisions on preliminary legal issues relevant to class 

certification. (Brinker, supra, 53 Cal.4th at p. 1025.)

When an Agreement for Services is signed, the proposed treatment is unknown, as 

is its cost. The trial court was presented with threshold determinations, for certification 

purposes only, on whether an ascertainable group of class members had common 

interests in obtaining relief for injury occurring when they received their initial bills that 

referenced Charge Master rates. The gravamen of the alleged wrongs drives the analysis 

of the appropriate definition of a class who may seek remedies to address those wrongs. 

We next examine the record on the validity of Kendall's evident assumption that the 

publicly available Charge Master rates provide accurate benchmarks that allow classwide estimates and determinations of patient liabilities to pay for treatment rendered.

19
C. Evidence on Billing and Payment Processes

Scripps's senior director of patient financial services, Kehl, testified at his 

deposition that he oversees the business office's departments, including collections and 

customer service, electronic data interchange, and transactions or revenue management, 

each of which has its own manager. The business office works with other Scripps 

departments, including the health information department, which is responsible for 

maintaining the standard Charge Master system and medical records. There is one 

Eclipsys patient accounting system for Scripps, but each hospital has its own segment of 

that Eclipsys system. Billing to patients states the applicable service areas, such as room 

and board or laboratory work, and lists them at standard Charge Master rates. The bills 

do not list specific line items of treatment, but only basic service areas.

Typically, if patients do not give the emergency room staff any insurance 

information up front, then they will be registered as self-pay patients. Once a self-pay 

patient is discharged from the emergency room, the first billing item that he or she would 

get, within three days of discharge, would be an informational statement that has no 

charges, payments, or adjustments on it, and instead has the words superimposed over the 

front, "This is not a bill." The statement shows what information Scripps has in the 

patient accounting system, asking the person to call and correct incorrect items.

Kehl testified that such a self-pay patient would, 15 days after that initial letter, 

receive the first patient statement with charges, and could render payment. Another bill 

would go out roughly 30 days after the 15-day bill, reflecting any payment activity or 

other adjustments that had been made since the first bill, that were manually input into 

20
the patient accounting system for that specific patient. To record any such payment 

activity or adjustments, the accounting system breaks down reimbursements by using 

about 25 different codes to identify patient payments made (a) at the facilities, (b) by 

credit cards online, (c) received over the phone by customer service staff, and (d) mailed 

payments. Only a total adjustments number will show up on a patient's bill, but specific 

adjustments are input into the Eclipsys system to reflect contractual or charity 

adjustments. Scripps uses outside vendors for billing purposes and also has an internal 

collections department for obtaining reimbursement to adjust bills, from insurance 

companies and other programs such as Medicare and Medi-Cal. Kehl also testified that if 

an account were sent to an outside collections agency, the Eclipsys system would make a 

notation of that action, and the bills would be written off the accounts receivable, but not 

removed from the Eclipsys system.

In his declaration prepared after the deposition, Kehl described the Charge Master 

that Scripps, like all California hospital systems, is required to use to make public a 

comprehensive listing of items that are billed by the hospital to a payer or patient. He 

states that the Charge Master list in effect during Kendall's July 2013 visit contained over 

60,000 different line items, each relating to specific or bundled procedures, services, and 

goods. The charges on the list are individually derived by Scripps. During the billing 

process, "Scripps's billing employees are trained to work with patients to help them 

determine whether there might be coverage for the medical bills through private 

insurance, governmental programs, or other financial assistance programs, even if they do 

21
not affirmatively request it at the time they seek treatment." Discounts may be afforded 

for qualifying patients by comparing their incomes to the federal poverty level.

Kehl explained that because of the complexity of the financial adjustments 

required, Scripps would have to conduct "an individual inquiry into hundreds of 

thousands of patients' records" "to figure out what a patient has paid for his/her 

encounter, if anything, or to assess whether the patient later qualified for Medicare, CMS 

[Medicaid], or other governmental assistance program. . . . The same is true if Scripps 

were asked whether and to what extent a patient was offered and accepted any discount 

based on any financial assistance or charity program, and the resulting payments made, if 

any."

On the subject of placing a value on medical services rendered, Scripps submitted 

declarations from an expert health policy consultant, Tzvi Hefter, and Michael Heil, a 

health care management consultant. They disagreed with the conclusory statements by 

Kendall's experts about the accuracy of using an overall cost-to-charge ratio, obtained 

from OSHPD, to determine what emergency room care actually costs and therefore what 

reasonable charges for such services would be. Hospitals report their cost and charge 

data to OSHPD, but such reports do not provide sufficient information for determining 

the actual costs of providing particular services to particular patients. OSHPD does not 

ask hospitals to determine costs at a particular charge or revenue code level, because that 

would be impractical. A typical Charge Master document has between 10,000 to 20,000 

individual charges listed, and there is no regulatory or business requirement that a 

hospital create any breakdown of actual costs for each individual charge. The actual cost 

22
of rendering services to any particular patient usually involves resources from different 

cost centers, which have both fixed and variable costs. There is no direct correlation 

between each charge that a hospital makes and the actual costs it incurs for services 

provided.

D. Reasonableness of Charge Master or Other Rates

Kendall argues that the Charge Master rates appearing on bills are unlawful or 

unconscionable as applied to self-pay patients, because his expert calculates that those 

rates are an average of four to five times the actual costs of delivering the services. His 

expert also calculated that the Charge Master rates amount to more than double of what 

Scripps actually receives as reimbursement from different categories of patients and 

programs. Kendall points out that Scripps is a nonprofit entity and contends that such 

status should preclude high charges for its services.

We first observe that Kendall's argument continues to disregard the trial court's 

rulings that sustained Scripps's objections to portions of the Basseen and O'Connell 

declarations, as making statements without adequate foundation. Although Kendall 

argues that more evidence was provided to the court than in the case of Hale II, supra, 

232 Cal.App.4th 50, not all of his proffered evidence was admissible, and not all of it 

favored his position. Scripps's objections were sustained to the Basseen and O'Connell 

declarations, to the extent that they gave opinions without foundation (e.g., how to 

determine reasonable value of services based on paid claims data; how to extract data). 

Kehl's declaration explained that Kendall's proposed means of identifying the proposed 

class had misinterpreted his own deposition testimony about the existence and 

23
capabilities of a "report writer" function. Kendall has no evident basis to argue that his 

experts know more about Scripps's electronic data system and how it can be manipulated 

than do its own managers and experts. It is not enough for Kendall to repeat his experts' 

conclusory statements here, without showing how the trial court erred in sustaining the 

objections to them. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1168-

1169 [evidentiary rulings subject to trial court's discretion].)

There is authority that the reasonable value of medical services is a factual issue to 

be determined by the trier of fact, considering not only costs but also reimbursement rates 

and other relevant information. (Children's Hospital, supra, 226 Cal.App.4th at 

pp. 1274-1275.) That case did not involve a class of self-pay patients, but rather was a 

dispute between a hospital and a health care benefits program, about how to determine 

the reasonable value of certain medical services the hospital provided to covered patients, 

during a time period when there was no existing written contract in effect. It was in that 

context that the court was discussing evidentiary factors for determining the amount of 

compensation at stake. (Id. at p. 1264.) In a proper case, the courts will have authority 

" 'to set specific reimbursement rates under theories of quantum meruit and the 

jurisdiction to enforce a reimbursement determination on both the provider and the health 

plan.' " (Id. at p. 1273.) That authority does not support a conclusion that class treatment 

to resolve such specific questions for patients is appropriate.

Kendall seeks to have a legal ruling issued on reasonableness or unconscionability 

grounds, to tie the charges billed to those self-pay patients who lack any coverage, to 

reimbursement rates received from patients who do have coverage. However, to make a 

24
showing that the price term of the Agreement for Services is substantively 

unconscionable, Kendall must provide a context about the basis and justification for the 

price, which may include similar prices for similarly situated patients. (See Moran v. 

Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1148 (Moran).) "In 

addition, 'courts consider not only the market price, but also the cost of the goods or 

services to the seller [citations], the inconvenience imposed on the seller [citation], and 

the true value of the product or service.' " (Ibid.)

The expert evidence provided by Scripps greatly undermines Kendall's proposed 

pure legal analysis, by showing that hospital costs will vary, depending on economies of 

scale and other relevant factors. During the provision of care, costs incurred sometimes 

exceed the reimbursement amounts received from government or insurance benefit 

systems. Imposition of liability to pay for services will vary, based on policies developed 

by providers for dealing with insurance or governmental benefit reimbursement rates. 

Kehl stated that in the bills sent to individual patients, "the line-items are individually 

generated. Itemized billing statements for each patient visit can range from one page to 

hundreds of pages long for each individual encounter. A patient may have insurance 

coverage, but not have coverage for particular services at issue. For example, some line 

items may be excluded from coverage or a particular hospital stay could be excluded due 

to coverage exclusions . . . . In order to differentiate a patient with insurance coverage 

from a self-pay patient under these circumstances, an individual review of every patient's 

account would have to be conducted to determine the reason for lack of payment. . . . 

25
This could include a manual review of scanned documents in [imaging hard copy system 

File CD] for hundreds of thousands of Scripps patients' individual accounts."

Once the accounts were reviewed, individualized analyses would then be 

necessary on how a self-pay patient should be held financially responsible, compared to 

other patients. As explained in Children's Hospital, supra, 226 Cal.App.4th 1260, "the 

facts and circumstances of the particular case dictate what evidence is relevant to show 

the reasonable market value of the services at issue, i.e., the price that would be agreed 

upon by a willing buyer and a willing seller negotiating at arm's length. Specific criteria 

might or might not be appropriate for a given set of facts." (Id. at p. 1275.) Moreover, 

" '[A] medical care provider's billed price for particular services is not necessarily 

representative of either the cost of providing those services or their market value.' 

[Citation.] Rather, the full billed charges reflect what the provider unilaterally says its 

services are worth. In a given case, the reasonable and customary amount that the health 

care service plan has a duty to pay 'might be the bill the [medical provider] submits, or 

the amount the [health care service plan] chooses to pay, or some amount in between.' " 

(Ibid.)

In Hale II, supra, 232 Cal.App.4th 50, this court rejected the class proponent's 

claims that the amount of regular rates that could properly be billed could be established 

on a class-wide basis through the use of " 'a fixed percentage of the Chargemaster rates.' " 

(Id. at p. 65.) The class proponent was unable to show it would be easy to calculate such 

rates, and also could not show that "shortcutting the determination of liability" would 

allow the hospital to present all its proper defenses. (Id. at p. 66.) Here too, it is 

26
unrealistic for Kendall to suggest that a class-wide reduction in fees can be ordered as a 

matter of law, based on a proposed percentage of the Charge Master rates, because 

substantial evidence is required to establish commonality of issues on liability, such as 

entitlement to damages or restitution.

It is significant here that under the UCL, conduct permitted by statute is not to be 

declared illegal by the courts: " ' "There is a difference between (1) not making an 

activity unlawful, and (2) making that activity lawful." ' " (Hale I, supra, 183 

Cal.App.4th at p. 1380.) The Health and Safety Code permits Scripps to create, report

and publicize its Charge Master rates, and section 1317, subdivision (d) requires patients 

to sign an agreement that acknowledges payment obligations under those terms. Section 

127444 directs that this body of law be construed to require hospitals to give notice of 

their uniform Charge Master or published rates before communicating them to patients. 

(Moran, supra, 3 Cal.App.5th 1131, 1141-1142 [Hospital Fair Pricing Policies Act 

requires licensed hospitals to promulgate written policies on discount and charity 

payments; § 127405, subd. (a)(1)(A)].) Pursuant to its section 127443, the rights and 

remedies created by this Act are intended to be cumulative and not to supersede other 

legal rights and remedies. The Agreement for Services legitimately begins the billing 

process, and the process allows for various adjustments and credits to be made on an 

individualized basis.

As Kendall originally defined the proposed class, individualized inquiries would 

be necessary to calculate liability and damages, by generating a hypothetical reasonable 

rate for emergency services, and determining what portion of it each patient should be 

27
held liable to pay, after treatment was completed. The evidence showed that numerous 

factors affect the amounts that will be sequentially billed, depending on later findings 

about availability of coverage from insurance, governmental benefits, charity or 

discounts. In Kendall's newly proposed amended class definition, he appears to be 

focusing on alleged injury in fact that occurs promptly upon a patient's receipt of a bill at 

Charge Master rates. His new definition "would be based on to whom the hospital sent 

its billing, rather than who made the payment on the individual patient's account," such as 

a paying entity (e.g., Medicare, Medi-Cal, or commercial insurers).

Even if we accept that Kendall actually presented his proposed amendment to the 

trial court, which is not entirely clear from the record, it would not solve the existing 

problems about a lack of community of interest among class members on actual injury 

incurred. An emergency patient cannot anticipate the extent of treatment that will be 

needed until stabilization. Likewise, the extent of the enforceability of each patient's bill 

will be determined over time. Kendall has raised only speculation that each and every 

bill will go to the collections stage, or that harassment or improper practices may occur. 

(Civ. Code, § 1788.1 [purposes of California Fair Debt Collection Practices Act include 

preventing unfair or deceptive collection practices].) There are presumably different 

levels of creditworthiness among self-pay patients and thus potentially different levels of 

damage among class members.

We conclude the trial court had a sufficient basis in the record to determine that 

class certification was not an appropriate format for pursuing the imposition of a legal 

duty upon Scripps to refrain from utilizing the Charge Master billing information, in its 

28
initiation of billing and collection activity. Any reasonable value determinations 

concerning the services provided to Kendall and to putative class members must involve 

considerations not only of the individual variations among the patients' treatment, but of 

the effect of regulatory schemes, all of which are beyond the scope of the current 

pleadings to resolve.

Even accepting that "the power to reach the merits as part of the certification 

process is at most a discretionary power to be employed in exceptional cases" (Hall, 

supra, 226 Cal.App.4th at p. 296), we see no indication the trial court overreached by 

going to the merits when denying the requested class certification. The trial court did not 

dismiss the action as a whole, but properly analyzed the class allegations to find that the 

required community of interest had not been shown to exist. Substantial evidence 

supports its analysis.

III

ASCERTAINABILITY REQUIREMENT: CLRA AND UCL

"Whether a class is ascertainable is determined by examining (1) the class 

definition, (2) the size of the class, and (3) the means available for identifying class 

members." (Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1271.) 

" ' " 'Class members are "ascertainable" where they may be readily identified without 

unreasonable expense or time by reference to official records.' " ' " (Thompson, supra, 

217 Cal.App.4th at p. 728.) " 'Class certification is properly denied for lack of 

ascertainability when the proposed definition is overbroad and the plaintiff offers no 

means by which only those class members who have claims can be identified from those 

29
who should not be included in the class.' " (Hale II, supra, 232 Cal.App.4th at pp. 58-59; 

Miller v. Bank of America, N.A. (2013) 213 Cal.App.4th 1, 7.)

Kendall contends that either his original class definition, or his proposed 

amendment, sufficiently identifies an ascertainable class that is not overinclusive. In his 

experts' declarations, he proposed methods for analyzing Scripps's records for billing and 

payments, to identify class members who have claims based on the allegedly excessive 

Charge Master billings. (See Thompson, supra, 217 Cal.App.4th at pp. 727-728 

[overbroad class definitions may be rejected].) He argues that the trial court erroneously 

imposed a burdensome "administrative feasibility" requirement, beyond what California 

law allows. (Nicodemus, supra, 3 Cal.App.5th at pp. 1216-1217 [identifying different 

mechanisms that were available to find and give notice to class members].) He contends 

that if the class as currently defined is overbroad, such problems can be dealt with at a 

later time (e.g., through subclasses). (See Aguiar v. Cintas Corp. No. 2 (2006) 144 

Cal.App.4th 121, 136.) Alternatively, he requests that if the current class definition is too 

broad, we should reverse the order with instructions to allow him to modify his class 

definition. Kendall also questions whether any notice to the class members is actually 

necessary for his requested decrees.

Where the administrative cost to identify and process certain self-pay patients' 

claims would be " 'so substantial to render the likely appreciable benefits to the class de 

minimis in comparison,' " the trial court has the discretion to deny the class certification 

request. (Hale II, supra, 232 Cal.App.4th at p. 61.) Scripps showed, through its financial

services director Kehl's deposition and declaration, that even though a financial 

30
department manager could run a database inquiry to obtain certain information, Scripps 

does not have an expert in running database inquiries. When its managers utilize the 

report writer function to input the specifics that identify the data elements to be examined 

concerning a particular visit, "you have to be very specific as to the exact fields and the 

pathway that you're in to get to those fields, if they are attainable." (Italics added.) It is 

not appropriate to require Scripps to create new computer programs to satisfy Kendall's 

demands. (See id. at pp. 67-68.)

Kendall cannot explain how potential self-pay class members, who have claims of 

injury from their receipt of bills containing allegedly excessive Charge Master amounts, 

can be found through his suggested methods and then distinguished from those patients 

who should not be included in the class (e.g., if the nonmembers' care costs were 

ultimately subject to discounting or payment in full by insurers, governmental benefits 

providers, or charity). The trial court correctly determined from the evidence that 

Kendall did not show the existence of a reasonable method for Scripps "to ascertain who 

has claims and who does not without an individualized analysis of each patient's payment 

record." (Hale II, supra, 232 Cal.App.4th at p. 59.)

In view of Kendall's shifting theories about whether receipt of billing alone creates 

class-wide damage to self-pay patients, and whether data on patient payments or other 

reimbursements received for services are even relevant to defining the class, it is difficult 

to make any realistic evaluation of the ascertainability criterion. Neither the trial court 

nor this court can issue advisory opinions on a class basis about how to solve the serious 

affordability problems in the health care industry, which are matters of public policy 

31
much in the news and commonly considered to be subject to legislative and executive 

controls. There was no abuse of discretion in the ruling denying certification of the class 

on this ground.

IV

RELATIONSHIP OF DECLARATORY RELIEF AND STATUTORY CLAIMS

A. Introduction to Theories Pled

" ' " 'The purpose of a declaratory judgment is to "serve some practical end in 

quieting or stabilizing an uncertain or disputed jural relation." [Citation.] "Another 

purpose is to liquidate doubts with respect to uncertainties or controversies which might 

otherwise result in subsequent litigation [citation]." [Citation.]' [Citation.] " 'One test of 

the right to institute proceedings for declaratory judgment is the necessity of present 

adjudication as a guide for plaintiff's future conduct in order to preserve his legal 

rights.' " ' " (Moran, supra, 3 Cal.App.5th 1131, 1153.)

In pleading his causes of action for declaratory judgments, Kendall incorporates 

his previous allegations from his CLRA and UCL claims and contends he is entitled to a 

declaration of rights and duties about the binding effect of the price terms of the 

Agreement for Services. He contends the declaratory relief allegations are stand-alone 

causes of action that should justify the issuance of a declaration as to the meaning of a 

single contract provision, which he interprets as allowing only the reasonable value of 

services to be billed to self-pay patients. Alternatively, he seeks a declaration that the 

Charge Master rates are grossly excessive or unconscionably high, when measured 

against the backdrop of CLRA and UCL statutory law. He contends each cause of action 

32
should be analyzed separately for its relevant class action standard, and that federal rules 

would permit him to obtain declaratory relief without regard to California requirements 

of community of interest and ascertainability of the class.

Although the language of the Agreement for Services is common to all class 

members, and they were all charged the Charge Master rates, Kendall is not pleading 

breach of contract. That was an appropriate concession under Hale I, supra, 183 

Cal.App.4th 1373, 1387, in which this court sustained a demurrer ruling to disallow a 

former patient from bringing a breach of contract action based upon one hospital's 

agreement for services. By failing to pay more than a token amount toward her bill, that 

patient had failed to establish the contractual element of performance or excuse from 

performance. (Ibid.) Kendall also has not shown he paid anywhere close to the 

reasonable value of services he received.9

Instead, Kendall pursues a contract interpretation through declaratory relief, to 

settle the legality of Scripps's billing behavior with respect to the class as a whole. In 

addition to his contractual arguments, he cites to CLRA statutory principles prohibiting 

unconscionable terms. (Civ. Code, § 1770, subd. (a)(19).) Even though Kendall says he 

does not seek certification of CLRA class on declaratory relief, he still relies on all the 

CLRA allegations both as a declaratory relief foundation, and to serve as the predicate or 

"borrowed" other law being violated as the UCL claim alleges. (Hale I, supra, 183 

9 One of Kendall's declaratory relief theories is that he should not be required to 

apply for financial assistance before challenging the Charge Master rates, although that 

particular issue has not been argued on appeal. (See Sarum v. Dignity Health (2014) 232 

Cal.App.4th 1159, 1169 [some burden is involved in applying for financial assistance].)

33

 
Cal.App.4th at pp. 1382-1383; Cel-Tech Communications, Inc. v. Los Angeles Cellular 

Telephone Co., supra, 20 Cal.4th at p. 180.)

B. Alternative FRCP Rule 23 Analysis

Kendall argues the trial court applied the wrong standard to determine the class 

certification question for declaratory relief, when it focused on California law requiring 

ascertainability and the predominance of common issues. Instead, Kendall seeks to have 

this court analyze his request pursuant to the requirements of FRCP rule 23(b), on the 

grounds that California law does not provide adequate guidance in this area. (Capitol 

People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 692, 

fn. 12 ["In the absence of relevant state precedent, trial courts are urged to follow the 

procedures set forth in rule 23 of the [FRCP] for conducting class actions"]; Carter v. 

City of Los Angeles (2014) 224 Cal.App.4th 808, 823–824 (Carter) ["California class 

actions can neither be certified pursuant to [FRCP] Rule 23(b)(2) [] nor barred from 

certification by the rule," but FRCP rule 23(b)(2) provisions are advisory].) For example, 

lawsuits challenging as illegal certain system-wide practices or policies, affecting all 

putative class members, may proceed under federal standards giving a broad 

interpretation to the community of interest requirement. "In such circumstances, 

individual factual differences among the individual litigants or groups of litigants will not 

preclude a finding of commonality." (Capitol People First, supra, p. 691, fn. 11; see 

Armstrong v. Davis (9th Cir. 2001) 275 F.3d 849, 868.) This federal rule certification 

approach will accommodate cases in which all class members have suffered similar harm 

from a systemic failure to accommodate their situations, and where prosecution of 

34
separate actions would be so difficult as to be impossible. (Capitol People First, supra, 

at p. 691, fn. 12; In re Yahoo Mail Litigation (N.D. Cal. 2015) 308 F.R.D. 577, 582 

[alleging class-wide violations of state and federal wiretapping laws and seeking 

injunctive relief].)

As a licensed hospital, Scripps is required to refrain from discriminating against 

persons seeking emergency services on the basis of their personal characteristics or their 

ability to pay for medical services. (§ 1317, subds. (b), (d) [emergency room regulations 

found within licensing provisions for health facilities' "other services")].) We have found 

no support in the record for Kendall's argument that Scripps is engaging in illegal billing 

behavior, after such services are rendered, that controverts applicable statutory standards 

for hospital billing and reimbursement. (See Brinker, supra, 53 Cal.4th at pp. 1033-1034

[evaluating the class's theory of liability that the employer's uniform policy, when 

measured against applicable legal requirements such as a wage order, is allegedly 

unlawful].) Kendall is essentially requesting an abstract contract interpretation ruling that 

excludes consideration of existing provisions of law that govern the financial 

arrangements that hospitals may make for recipients of emergency care.

Kendall suggests that under federal law, ascertainability questions need not be 

addressed regarding the proposed declaratory relief class, and he states that notice to class 

members "may never be required in this case," or that publication notice would be 

sufficient. But if the proposed rulings are significant enough to affect class members and 

their relationships with Scripps, he cannot explain why standard notice requirements 

should be disregarded. (Carter, supra, 224 Cal.App.4th 808, 823-824 [due process 

35
concerns require notice and opt-out rights to class members unless " 'the relief sought 

must perforce affect the entire class at once' "].) The ordinary notice requirements cannot 

be avoided simply by citing to FRCP rule 23(b).

Because of the comprehensive California case law applicable to Kendall's 

substantive claims under CLRA and the UCL, and the very closely related nature of his 

declaratory relief claims, we see no need to look to federal law for guidance in evaluating 

his requests for certification of the declaratory judgment causes of action. Kendall has 

not identified any characteristics of the proposed class, such as financial status, that 

cannot properly be analyzed through the use of California law, with regard to his 

declaratory relief arguments. (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 

1589, 1602-1603.) This record did not require the trial court to expressly discuss or 

apply FRCP rule 23.

C. Analysis

" '[F]or purposes of certification, the proper inquiry is "whether the theory of 

recovery advanced by the plaintiff is likely to prove amenable to class treatment." ' " 

(Hall, supra, 226 Cal.App.4th at p. 292.) Kendall believes that the Agreement for 

Services lacks any valid price term, as a matter of pure contract interpretation, and 

instead, the Agreement for Services should not be permitted to make references to Charge 

Master billings. He invokes equitable principles of quantum meruit and suggests the 

court apply a flat percentage reduction from the gross Charge Master charges, to arrive at 

the reasonable value of the services rendered, through a comparison of the Charge Master 

rates either to the hospital's costs in providing services, or to the reimbursement rates for 

36
various categories of patients covered by other benefits plans. This approach would 

effectively place the burden on Scripps to prove the value of its services before billing for 

them.

Kendall finds support for his position in a demurrer case, Moran, supra, 

3 Cal.App.5th 1131, 1142. There, the court observed that the Hospital Fair Pricing 

Policies Act (§ 127400 et seq.) "imposes on licensed hospitals the requirement that they 

establish, give notice of, and administer financial aid and charity care policies, and allows 

a hospital to bill for treatment and services based on its own schedule of fees. However, 

it does not preclude claims based on what a patient allegedly expected to pay or authorize 

costs that are allegedly exorbitant. Consequently, the Act neither ' "bar[s]" [an] action' 

under the UCL, nor does it 'clearly permit' a hospital to charge self-pay emergency care 

patients 'artificial and grossly excessive rates.' " (Moran, supra, at p. 1142; § 127444 

[hospitals must give notice of uniform Charge Master or published rates].)

For the class as presently defined, the certification decision on the declaratory 

relief theories must also take into account Kendall's pleaded statutory claims. Assuming 

patients are exposed to financial liability upon receiving notice of the billed amounts, 

there are many other factors that may affect Scripps's potential liability to each patient for 

the allegedly wrongful billing practices. Some self-pay patients are ultimately 

determined to be eligible for some kind of insurance, governmental benefits coverage, or 

charity or discount assistance. (See Children's Hospital, supra, 226 Cal.App.4th at 

p. 1278 [factual disputes remained about "reasonable and customary value" of hospital 

services, when accepted payments had varied, depending on contracted-for insurance 

37
charges and government reimbursement rates].) There are significant remaining factual 

and logistical problems in identifying members of the proposed class, for purposes of 

ascertaining their identity and billing status.

Nor does Kendall's proposed modification of the class definition, to restrict it to all 

self-pay patients who received bills from Scripps and omit any further consideration of 

whether some other entity made payments on the individual patient's account, make this a 

proper declaratory relief request. Kendall can show no support for his theory that, "at the 

very least," the trial court should have discussed and certified a declaratory relief "issue" 

class with respect to his contractual interpretation and/or unconscionability claims. (Cal. 

Rules of Court, rule 3.765(b) ["[w]hen appropriate, an action may be maintained as a 

class action limited to particular issues"].) The court did not find it was appropriate to do 

so, based on the type of generalized decrees being requested and the availability of other 

forms of relief, and this was a reasonable determination under the circumstances.

Certifying a class to issue declaratory relief, that would resolve the proper extent 

of some self-pay patients' remaining contractual and equitable payment obligations, could 

not properly be granted in a theoretical vacuum that disregards not only the related 

substantive statutory claims, but also the existence of specialized regulations of 

emergency services billing that allow the use of the Charge Master format. (§ 1317, 

subd. (d) [allowing emergency room patients to be required to sign an agreement to 

provide information on payment options; § 1339.51 [notifications on allowable Charge 

Master rates]; § 127444 [uniform charges allowed under Hospital Fair Pricing Policies 

Act].) Under Code of Civil Procedure section 1061, the trial court could appropriately 

38
refuse to exercise the power to grant declaratory relief, where it was unnecessary or 

inappropriate under all of the circumstances. This was a discretionary decision within the 

authority of the court, and it will not be disturbed on appeal. (Allstate Ins. Co. v. Fisher, 

supra, 31 Cal.App.3d at p. 395.)

DISPOSITION

The order is affirmed. Costs on appeal to Scripps.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

39
Filed 10/23/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PAUL KENDALL,

Plaintiff and Appellant,

v.

SCRIPPS HEALTH,

Defendant and Respondent.

 D070390

 (Super. Ct. No. 37-2013-00073680-

 CU-BT-CTL)

ORDER CERTIFYING OPINION 

FOR PUBLICATION

THE COURT:

The opinion in this case filed October 18, 2017 was not certified for publication. 

It appearing the opinion meets the standards for publication specified in California Rules 

of Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a), 

for publication is GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing 

on page one of said opinion be deleted and the opinion herein be published in the Official 

Reports.

McCONNELL, P.J.

cc: All Parties